The Ninth U.S. Circuit
Court of Appeals yesterday reversed five of disgraced lobbyist Monte McFall’s
convictions for attempted extortion, saying they were unsupported by
substantial evidence.

McFall, 63, is currently
serving a 10-year sentence for his role in a corrupt profiteering case that
brought down several state and local officials in San JoaquinCounty. His attorney told the MetNews
a substantial reduction in the sentence is possible as a result of yesterday’s
ruling.

The lobbyist joined
forces with former San Joaquin Deputy District Attorney Neat Allen Sawyer, the
then-chief deputy director of the Governor’s Office of Criminal Justice
Planning, and then- San Joaquin Sheriff T. Baxter Dunn to support Lynn
Bedford’s bid for a county supervisor’s seat which had become vacant in 2001.

Shortly before Bedford secured the
appointment, McFall, Sawyer and Dunn formed SMTM Partners LP—which stood for
“Show Me The Money.”

SMTM Partners
subsequently entered into a consulting contract with Sunlaw Energy Corporation,
which was competing with the Calpine Corporation for the right to build a power
plant at a site in the Port of Stockton.

McFall allegedly
threatened Calpine to drop its bid for the port site or else he would use his
political influence to build opposition to another pending Calpine project in AlamedaCounty.

Resolution Raises
Concerns

When the corporation
declined to withdraw its bid, Dunn appeared at a San Joaquin County Board of
Supervisors meeting and denounced Calpine’s Alameda project as a threat to public safety. Bedford sponsored a resolution
raising environmental, health, and safety concerns about the project, and the
resolution passed 4-1.

Based on this incident,
the government charged McFall with attempted extortion and conspiracy to commit
extortion under color of official right, in violation of the Hobbs Act.

Extortion is defined by
the act as “the obtaining of property from another, with his consent, induced
by wrongful use of actual or threatened force, violence, or fear, or under
color of official right.”

At trial before U.S.
District Judge Morrison C. England of the Eastern District of California, the
government argued that McFall had wrongfully sought to “obtain” Calpine’s
right to solicit business in the county, to bid on the construction of a power
plant, and to construct a power plant at the Port of Stockton.

A jury eventually
convicted him of nine counts of attempted extortion and conspiracy to commit
extortion, six counts of honest services mail fraud, and two counts of
attempted witness tampering.

On appeal McFall
challenged the sufficiency of the evidence supporting five of his convictions
for attempted extortion and conspiracy to commit extortion.

‘Larceny-Type Offense’

Writing for the
appellate court, Senior Judge A. Wallace Tashima explained that extortion in
violation of the act is a “‘larceny-type offense’” which, pursuant to Scheidler
v. National Organization for Women, Inc., (2003) 537 U.S. 393, requires a
showing that a defendant received something of value from the victim which
could be exercised, transferred or sold.

He reasoned that gaining
some speculative benefit by hindering a competitor’s chance of winning a
contract does not amount to obtaining a transferable asset, concluding that the
evidence McFall had attempted to restrict Calpine’s bidding activity was
insufficient to support his convictions for attempted extortion and conspiracy
to commit extortion.

McFall also contended
that the district judge had erred in failing to instruct the jury that a
finding of aiding and abetting or conspiring with a public official was
necessary to convict him of attempted extortion under claim of official right.

Following the other
circuits that have addressed the issue, Tashima concluded that England had committed
prejudicial instructional error in omitting such elements from the jury
instruction.

The trial court also
erred in declining to admit a transcript of Sawyer’s exculpatory grand jury
testimony which offered a first person account of key events at issue in the
alleged extortion conspiracy and contradicted testimony of government’s primary
witness after Sawyer asserted his Fifth Amendment right against
self-incrimination during trial, Tashima said.

Judges Mary M. Schroeder
and William A. Fletcher joined Tashima in his opinion.

Sacramento attorney Victor S.
Haltom represented McFall and opined that yesterday’s decision “threw out the
central pillar of the government’s case” against his client.

Unless there is further
appellate review, which he said was a possibility, Haltom said he expected his
client to receive “a significantly reduced sentence” on remand.

Haltom suggested that
the decision marked an extension of Scheidler from the factual
circumstances of that case, which had held anti-abortion protesters who
obstructed access to abortion clinics did not obtain the clinics’ property
within the meaning of the Hobbs Act.

Assistant U.S. Attorney
Benjamin B. Wagner said he was pleased that the Ninth Circuit had affirmed McFall’s
convictions on 12 of the 17 counts of which he was convicted.

He emphasized that the
panel reversed the five convictions “not because of any question about Mr. McFall’s
conduct, but because they simply took a different view than the government did,
and the district court did, in three legal areas where the law was somewhat
unsettled.”

Wagner added that it was
“too early” to know if the government would appeal yesterday’s ruling.